HQ 0112098 - Coastwise; Passengers; Sailing School; 46 U.S.C. App. 289. - United States International Trade Commision Rulings

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HQ 112098

May 6, 1992

VES-3-19 CO:R:IT:C 112098 JBW

CATEGORY: CARRIER

Mr. David L. Folsom
Sail Boston 1992, Inc.
250 Summer Street
Boston, MA 02210

RE: Coastwise; Passengers; Sailing School; 46 U.S.C. App. 289.

Dear Mr. Folsom:

This letter is in response to your inquiry of February 7, 1992, in which you request a ruling regarding the use of a foreign-flag sailing vessel in United States territorial waters.

FACTS:

In your letter, your state that sailing vessels registered in Russia and Poland will be used in United States waters to offer sailing instruction. The ships will be manned by both a permanent and a temporary crew, which crew will be assisting in the operation of the ship as trainees. Crews of trainees will be changed at two or more United States ports; some trainees will board in one United States port and will disembark at another United States port.

ISSUE:

Whether the use of a foreign-built vessel for sailing instruction would be in violation of the coastwise passenger law, 46 U.S.C. App. 289.

LAW AND ANALYSIS:

The coastwise laws generally prohibit the transportation of passengers or merchandise between points in the United States embraced within the coastwise laws in any vessel other than a United States built, owned, and documented vessel. 46 U.S.C. App. 289 (Supp. III 1985) & 46 U.S.C.A. 883 (West Supp. 1991). Points in the United States embraced within the coastwise laws include the United States territorial waters. The territorial waters of the United States consist of the territorial sea, defined as the belt, three nautical miles wide, seaward of the territorial sea baseline, and of the internal waters of the United States, landward of the territorial sea baseline, in cases where the baseline and the coastline differ. Headquarters Ruling Letter 111275, dated November 13, 1990.

The Customs Regulations define "passenger" for purposes of section 289 as "any person carried on a vessel who is not connected with the operation of such vessel, her navigation, ownership, or business." See 19 CFR 4.50(b)(1991). The Customs Service has held that a person being trained or receiving instruction in the handling or navigation of a vessel, and whose presence on board the vessel is required in order to receive such training or instruction, is not a "passenger" within the coastwise laws. Accordingly, if the vessel is used only for such training, then it would not be required to have a license to engage in the coastwise trade. See Headquarters Ruling Letter 109850, dated December 27, 1988, and Headquarters Ruling Letter 109287, dated February 24, 1988.

Therefore, the sole use of a foreign sailing vessel in connection with a bona fide instructional course in sailing and navigation with class or other instruction, as opposed to an outing, does not constitute coastwise trade within the meaning of 46 U.S.C. App. 289. From your description, everyone transported by the vessels will either be part of the regular crew or be part of the training crew. Their transportation is therefore permitted. We stress, however, that all persons being carried in the vessel must be involved with the operation, navigation, or business of the vessel. Persons who are carried on board a vessel for recreational purposes, whether or not they pay a fee, would be considered "passengers," and their carriage between places in the United States or entirely within United States waters would be in violation of the coastwise laws.

HOLDING:

The sole use of a foreign sailing vessel in connection with a bona fide instructional course in sailing and navigation with appropriate instruction and training is not coastwise trade in violation of 46 U.S.C. App. 289.

This letter addresses only those federal requirements that are administered by the United States Customs Service. While we are unaware of any federal or state agency requirements that might pertain to the undertaking you describe, it is possible that such requirements exist.

Sincerely,

B. James Fritz
Chief

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